COOPER v. McGRATH

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

The petition the petition for writ of habeas corpus is granted.

IT IS SO ORDERED AND ADJUDGED.

ORDER GRANTING PETITION FOR
WRIT OF HABEAS CORPUS

INTRODUCTION

This matter is now before the court for consideration of the merits of
Aaron Lyndale Cooper's pro se petition for writ of habeas
corpus concerning his 1996 conviction for murder, kidnapping and
carjacking. For the reasons discussed below, the petition will be
granted.

BACKGROUND

Cooper was convicted of kidnapping, carjacking and murder. To
summarize, the evidence showed that on August 3, 1995, three men
(identified by some witnesses as Cooper, Cross and Kingdom) were in a
parked blue car near an intersection in Oakland looking for Coco. A
Corvette pulled up with Coco. in the passenger seat. Coco. got out of the
car, talked to the three men briefly and was then put in to the trunk of
the blue car at gunpoint. The blue car drove away with Coco. in the trunk
and the Corvette was driven away by a man (identified by a witness as Cooper). Coco's dead body was found two weeks later in the
Oakland hills. He had been gagged and shot in the head. Cooper was
arrested in Oakland seven hours after the abduction, Cross was arrested
in Mississippi about a week after the abduction and Kingdom was arrested
in Mississippi about three months after the abduction. Cross and Cooper
were tried jointly, in a jury trial which started November 29, 1995 and
which ended with a guilty verdict on January 5, 1006. Kingdom, who was
arrested just about a month before the trial of Cross and Cooper, was
tried separately. The police had taped statements from Cross and Kingdom
admitting their presence at the crime but downplaying their roles in the
crime. Cooper presented an alibi defense. All three were convicted.

A. The Crimes

The description of the evidence presented about the crimes is lengthy,
owing partly to conflicting versions of the events and partly to
different people seeing only certain parts. Rather than add yet another
new lengthy description of the crimes, the court adopts the California
Court of Appeal's description of the evidence, with which neither party
has taken issue. The California Court of Appeal described the facts:

At approximately 4 p.m. on August 3, 1995, the
victim, William Highsmith known by the nickname
"Coco," rode as the passenger in a red Corvette
driven by Kevin or "K.K." Parker to a location in
front of a liquor store on the corner of 12th and
Market Streets in Oakland, California. Minutes
later he was abducted. Parker testified that he
borrowed the red Corvette from his girlfriend,
Tisha Williams, and picked up the victim earlier
that afternoon to look at car auctions.
Afterwards, they returned to West Oakland and he
parked the Corvette in front of the liquor store.
The victim got out of the car and began talking to
someone in a group of people. Parker was then
"grabbed from behind" and told to leave the area.
He could not identify the defendants or other
people at the scene. Immediately after the
incident, an Oakland Police Officer, Michael
McArthur, took a statement from Parker containing
certain further details. Parker then said he
parked behind a blue Oldsmobile with three men
inside and entered the liquor store, leaving the
victim in the Corvette. As he was leaving the
store, he heard gunshots from where he parked the
car and saw the Corvette being driven away by a
single occupant. The night before, the victim had
told him that "some men with guns" were looking
for him because they thought he had stolen a
Chevrolet IROC.

Parker's girlfriend, Tisha Williams, confirmed
that, earlier that day, she had allowed
Parker to drive her red Corvette, license number
2YQK292. The victim's sister, Raynetta Thomas,
testified that she saw him between 3:30 and 4 p.m.
at her mother's home a few blocks away from the
crime scene. He arrived as the passenger of a red
Corvette driven by Parker and stayed 10 to 15
minutes. He was dressed in an Adidas sweatsuit
with matching tennis shoes. The parties stipulated
that the red Corvette contained fingerprints of the victim and
Parker.

A bystander, Rodney Love, provided a detailed
account of the kidnapping, though he could not
identify the perpetrators. While he was eating a
snack outside the liquor store at 12th and Market
Streets, a man approached him from an area where a
blue 1989 Oldsmobile Cutlass was parked and asked
if he was "Coco." He inferred that the man was
carrying a revolver in his belt because his coat
was "puffed out." He told him that he was not
Coco, and the man walked back to the blue
Oldsmobile, in which two other men were sitting.
Two of the three occupants of the Oldsmobile wore
black jackets and gloves.

According to Love, Parker soon drove up in a red
Corvette, with the victim in the passenger seat,
and parked behind the Oldsmobile. Parker and the
victim got out of the car and began talking to the
men in the blue Oldsmobile. One of the three men
briefly grabbed Parker by the neck but then let
him go, allowing him to run into the store. The
three men then "pushed" the victim into the trunk
of the blue Oldsmobile and closed the trunk. One
of me three people got into the Corvette. Love
heard gunshots from the vicinity of the car and
then both the Oldsmobile and the Corvette drove
off in the same direction.

Other witnesses observed fragments of the same
events. A liquor store employee, Musa Hussein,
took a quick look at the street when he heard
sounds resembling gunshots. He saw Parker outside
the store and four men standing between a red
Corvette and a blue or gray car. One of the men
was a little taller than the others, maybe six
feet four or five inches tall. (Defendant Cross is
six feet five inches tall.) He also observed one
of the men with what appeared to be a gun.

Lauren Tallerico. heard four or five gunshots at
about 4:15 p.m. as she drove along Market Street
toward 12th Street. The shots came back from the
vicinity of a blue car, an older model Cadillac or
Oldsmobile, containing two Black males, which she
observed turn onto Market Street ahead of her and
then speed off down 13th Street toward downtown
Oakland.

Douglas Wright, an inspector for the district
attorney, was driving home on 12th Street at about
4:10 p.m., when he heard two gunshots and saw a
man standing behind a red Corvette parked about 50
feet from the intersection with Market Street. The
man came quickly around the car, jumped in, and
drove off down Market Street at a high speed.
Wright thought the license number of the Corvette
was 2 YOK93 3. The man appeared to be in his
middle twenties, about 5 feet, 11 inches tall, and
weighed about 170 to 180 pounds. After observing
Cooper at trial, Wright testified that there was
nothing inconsistent with his height and weight
and appearance from the person he saw enter the
Corvette. (Cooper is 6 feet tall, and 190 pounds,
and was 26 years of age at the time of trial.)

At approximately 7 p.m. on the evening of the
same day, a motorist, George Archambeau, driving
west on the San Mateo Bridge saw a red Corvette
stopped in the right hand lane. A Black man of
average height, who appeared to come from the
passenger seat of the car, was engaged in throwing
a package the size of a grocery bag over the side
of the bridge into the water. A second
African-American male remained in the driver's
seat. Archambeau drove around the Corvette but the
car soon passed him driving at a high speed. He
noted that the license number was 2YQK292.

At 9 p.m. that evening, Moamer Mohamed, an
employee of the liquor store at 12th and Market
Streets, saw a red Corvette left with the engine
running in the entrance to the store's parking
lot. When he went to investigate, he saw a tall,
skinny Black man, wearing a checked shirt and gloves, running
from the parking lot. He associated the Corvette
with Kevin Parker, upon being notified by police,
Parker's girlfriend, Tisha Williams, reclaimed the
car later in the evening.

Later, at 11 p.m., a late-1970's blue Oldsmobile
Cutlass, which Oakland police associated with the
Kidnapping, was found in East Oakland near 100th
Street and Voltaire Street parked in front of the
residence of Juanita Walton, a critical
prosecution witness. An evidence technician found
vehicle registration and miscellaneous papers,
which identified Miltonous Q. Kingdom, a cousin of
defendant Cross nicknamed "Q," as the owner of the
car.

Three employees of the E-Z 8 Motel near the
Oakland Coliseum testified that defendant Cross
and another man registered in room 331 on July 23,
1995, and checked out around 9 or 10 a.m. on
August 4, 1995. The on-site manager, Robert
Britton, identified Kevin Parker as a motel guest
to whom he once advanced some money to receive a
U.P.S. package and testified that he had also seen
defendant Cooper on occasions at the motel. The
motel's registration form, introduced as a
business record, identified Cross*fn1 car as a
blue IROC. Another motel employee, Henry Reel, saw
defendants Cross and Cooper staying in room 331.
The occupants of that room used a blue IROC, and
he observed them put their belongings into this
car when they vacated the room on the morning of
August 4, 1995. He also saw a red Corvette parked
in the motel lot 10 or 15 times during the period
that Cross resided there. When shown a photograph
of Kevin Parker, he identified him as a person who
had stayed in room 310 of the motel at that time.

On August 16, 1995, a partially decomposed body
was found in a wooded area in the Oakland hills
accessible by a service road. The body was
identified by the Adidas sportswear and personal
belongings in a pocket as that of the victim,
William Highsmith. A portion of the shirt had been
torn away and a cloth gag tied over the mouth. A
scissors lay a few feet away on the ground. An
autopsy revealed that the victim had died of a
bullet wound to the head. A criminalist examined
the slug extracted from the victim's brain and
three shell casings found at the kidnapping scene.
He determined that the casings were from a 9
millimeter firearm but that me slug was fired from
a separate. 40 caliber gun.1

A separate line of evidence served to establish
a plausible connection between the defendant
Cooper and a jacket and gloves with gunshot
residue. At 11:30 p.m. on the evening of the
Kidnapping, an Oakland Police Officer, Darrin
Downum, stopped a car driven by one Carl Anderson
on 99th Avenue in East Oakland for having expired
registration tags. The defendant Cooper sat in the
front passenger seat, wearing a plaid shirt. When
Cooper got out of the car, Officer Downum observed
a pair of gloves on his seat and a jacket in the
back seat. Both Anderson and Cooper were arrested,
and the car taken to a storage facility.

Anderson's mother picked up the car the next day
and drove it to her back yard where she locked it.
A couple days later a police detective asked her
about the jacket in the car and she said it did not belong to
her son, but at trial she would say only that it
was not familiar. She never saw her son wear
gloves, though he had once been given a pair.
Anderson's father similarly testified that the
jacket was unfamiliar and that his son did not
wear gloves. In contrast, when called as a witness
for the defense, Anderson testified that the
jacket was in fact his and that the gloves were in
the car when he bought it. A criminalist testified
that he found gunshot residue on both gloves and
on the left cuff of the jacket.

The prosecution's case on the issue of
identification of the defendants Cooper and Cross
rested chiefly on the testimony of two women,
Zanetta Hodges and Juanita walton known by the
nickname "Goodie," and on an out-of-court
statement of Miltonous Q Kingdom. At approximately
4 p.m., on the afternoon of the crime, Hodges
drove down 12th Street with Walton in the
passenger seat. Upon stopping at the intersection
of 12th and Market Streets, Hodges heard someone
call her name and backed up a car length to come
even with a blue Oldsmobile parked near the
corner. There were three people in the car.
Sitting in the back seat was defendant Cooper,
whom she had met before at Walton's home and on
another occasion. He wore a dark jacket and black
gloves. Defendant Cross sat in the driver's seat.
She had seen him once before near Walton's home
driving a blue IROC automobile. She knew the third
man by the name "Q."

Pointing to a group of youths standing outside
the liquor store, Cooper asked Walton if one of
"those guys was Coco." Walton replied in the
negative. Defendant Cross then said, "That nigger
took my car, Goodie." Walton expressed disbelief,
saying that Highsmith was "not trying to get his
shoes dirty." At that point a red Corvette pulled
up behind the blue Oldsmobile. Defendant Cooper
said "bye" to the two girls, and they drove off to
a Grand Street store about six blocks away where
Walton obtained food stamps.

As they left the intersection, Hodges saw Parker
and Highsmith, both of whom she knew, leave the
red Corvette and meet the three men in the
Oldsmobile, who also got out of their car. After
obtaining the food stamps, the girls returned to
the intersection of 12th and Market Streets and
found police officers and a crowd of people. It
was stipulated that the records of the Grand
Street store revealed that Walton bought food
stamps at 4:09 p.m. and that police records
disclosed that the first telephone call reporting
the Kidnapping occurred at 4:08 p.m.

The prosecution introduced into evidence the
preliminary hearing testimony of Walton after the
trial court ruled that she was unavailable for
testimony. Walton testified that she had known
Parker and Highsmith for years and saw defendants
Cross and Cooper as well as Cross's cousin, "O,"
on a "daily" basis before the incident. She
recognized the blue Oldsmobile parked at the
corner of 12th and Market Streets as "Q's" car.
After she and Hodges returned to the scene, she
represented to police that she had been an
eyewitness of the kidnapping.*fn2 Later, she
identified defendant Cooper in police custody as
the man, who had sat in the back seat of the car.
She recalled that Cooper was wearing gloves and a
T-shirt at the time of the incident; she later saw
him wearing a checkered Pendleton shirt at the
police station. Walton gave police two somewhat
inconsistent, tape-recorded statements, which were
both played to the jury. At the preliminary
hearing, she conceded that she was not an
eyewitness and retracted many of her previous
statements. Nevertheless, her varying accounts of
the incident contained evidence corroborating every relevant point in
Hodge's trial testimony, except her description of
Cooper wearing a dark jacket.

An Oakland Police Officer, Larry Krupp,
presented a redacted transcript of a statement
that Miltonous Kingdom gave when contacted in a
Mississippi jail. On November 8, 1995, after
learning that Kingdom was under arrest, Krupp and
another officer traveled to Greenville,
Mississippi, to take custody of him on arrest
warrants for Highsmith's kidnapping and murder.
When he met Kingdom in the local jail and
explained his purpose, Kingdom responded, "I'm not
guilty" and initially denied any involvement in
the kidnapping. Krupp played a brief excerpt from
a tape-recorded statement of defendant Cross.
Kingdom then gave a statement providing a complete
account of the kidnapping and murder. At trial,
Krupp read to the jury a transcript of selected
portions of me statement.

Before the incident, Kingdom had been staying
with his cousin, defendant Cross, in a motel in
Oakland. That day, he drove in his blue Oldsmobile
to 100th Avenue and Mac Arthur in East Oakland "to
nook up with" defendants Cross and Cooper. Cross
drove the car to a store at the intersection of
12th and Market Streets in West Oakland as he sat
in the front passenger seat and Cooper in the back
seat. There, they talked to a girl named Goodie
until a red Corvette drove up and parked behind
them. He and the two defendants got out of their
car and talked on the sidewalk to two men in the
Corvette. Defendant Cross spoke to the men about
"the car." Defendant Cooper then drew a 9
millimeter handgun and ordered one of the men to
get into the trunk of his Oldsmobile. The man
complied.

Defendant Cooper entered the red Corvette while
Kingdom and defendant Cross got back into the
Oldsmobile. They went to the Oakland hills and
stopped on a dirt road in the woods. All three men
"went to the trunk." A portion of Highsmith's
clothes was torn off and tied to his mouth.
Defendant Cooper pulled down the man's pants. The
man was then shot in the face and fell to the
ground.

Testifying in his own behalf, defendant Cooper
presented an alibi defense in which he denied
being at the crime scene or seeing defendant Cross
or Kingdom on the day of the crime. He claimed
that he drove his wife to California State
University at Hayward in the morning. He later
took his Eagle Talon car to Mission carwash in
Hayward and picked up his wife at approximately 3
p.m. They paid accounts at a Nordstrom store,
returned to their apartment, and watched a video.
Around 9 p.m., he left their apartment to go to a
card game in East Oakland. He ran into Carl
Anderson and rode around in his car until he was
arrested later in the evening. Cooper's wife took
the stand to support the defense. In addition, an
employee of Mission carwash testified that he had
record of washing an Eagle Talon on August 3,
1995, and remembered seeing Cooper on that date.

In contrast, defendant Cross presented a defense
that conceded much of the prosecution's case,
disclaiming only personal responsibility for the
kidnapping and murder. He testified that he owned
a blue Chevrolet IROC which he intended to take to
Greenville, Mississippi. His plans were frustrated
when the car was stolen on July 30, 1995, while
loaded with thousands of dollars of drugs.
Defendant Cooper had contributed over $2000 to the
purchase of the drugs stolen with the car. He
began searching for the car in West Oakland and
was told that a person named Coco. was driving the
blue IROC around the neighborhood and trying to
sell it. He gave a person he met on the street his
pager number and a message to have Coco. call him.

In the afternoon of August 3, 1995, Cross and
his cousin, Kingdom, joined defendant Cooper at
100th and Mac Arthur. While they were together,
Cross received a call from Coco. on his pager and made
arrangements to meet him at the liquor store on
12th and Market Streets. Cross drove Kingdom and
Cooper to this location in Kingdom's blue
Oldsmobile. He got out of the car and asked people
near the store if they were Coco. He did not see
Juanita Walton and did not know Zanetta Hodges.

At this point, a red Corvette drove up. Stepping
out of the car, a man introduced himself as Coco
and denied taking the IROC. Cooper then grabbed
him and threatened him with a gun. For his part,
Cross walked back to the Oldsmobile and entered
the car. As Cross sat in the passenger seat of the
car, Kingdom got the car keys and opened the
trunk. From his position inside the car, Cross did
not see the man being put in the trunk but he
heard the trunk close.

Running to the passenger side of the car,
Kingdom told Cross to move to the driver's side
and take off. Cooper got in the red Corvette.
Cross drove to 100th and Voltaire where Cooper
joined them in the red Corvette. Cooper and
Kingdom then drove away in the two cars, but he
did not go with them. About two minutes later,
they returned in the Oldsmobile. Cross reentered
the car and drove to his motel. Later, Cooper
drove them to 100th and Mac Arthur but said
nothing about the person they had abducted. Cross
stayed at this location while Cooper and Kingdom
drove off again in the Oldsmobile. The next day he
took a plane to Mississippi. He did not ask and
was not told what happened to the man in the
trunk.

As impeachment, the prosecution played taped
statements in which Cross said that he and Kingdom
helped put the victim in the trunk. Cross insisted
that he was not truthful in making the statement
and never had any intention to kidnap or murder
the victim.

The jury found Cooper and Cross guilty. Cooper was convicted of first
degree murder, kidnapping, carjacking, and being a felon in possession of
a firearm. See Cal. Penal Code §§ 187, 207, 215, and 12021.
The jury found true the allegations that Cooper was armed with a firearm
in the commission of the murder, carjacking and kidnapping. The trial
court found in a separate proceeding that Cooper had served a prison term
for prior conviction of a felony and had been convicted of a serious
felony that qualified as a prior strike conviction under California's
Three Strikes law. Cooper was sentenced to a total term of 71 years to
life.

An appeal ensued. The California Court of Appeal affirmed the
conviction in an opinion filed November 9, 1998. See Resp. Exh.
B. The California Supreme Court denied Cooper's petition for review. The
U.S. Supreme Court granted his petition for writ of certiorari, vacated
the judgment and remanded the case for reconsideration in light of
Lilly v. Virginia, 527 U.S. 116 (1999). On remand, the California Court of Appeal reinstated
the judgment and affirmed the conviction in an opinion filed July 6,
2000. See Resp. Exh. A. The California Supreme Court denied
Cooper's second petition for review and the U.S. Supreme Court denied
his second petition for writ of certiorari. Cooper also unsuccessfully
sought collateral review in state court.

Cooper then filed this action for a writ of habeas corpus in November
2002. His amended petition filed on June 5, 2003 contained eleven claims
for relief, of which the court found eight cognizable. Respondent was
ordered to file an answer to these claims: (1) a Confrontation Clause
violation in the admission of Kingdom's statement, (2) a due process
violation based on prosecutorial misconduct in eliciting improper
testimony on three occasions (i.e., the cross-examination of Cooper about
a trial in which Cooper introduced expert testimony about guns, the
cross-examination of Cooper's wife about her 1993 marriage to Cooper in
jail, and the cross-examination of co-defendant Cross about Cooper's
alleged prior bad acts of shooting at people), (3) a Confrontation Clause
violation in the admission of Goodie Walton's preliminary examination
testimony, (4) a due process violation in the method used by inspector
Wright to identify Cooper in the courtroom, (5) a due process violation
in the failure to sever the trials of Cooper and Cross, (6) a due process
violation because the record on appeal was incomplete, (7) a due process
violation based on the insufficiency of the evidence, and (8) a
cumulative error claim. Respondent filed an answer and Cooper filed a
traverse. The matter is now ready for consideration on the merits.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for
relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is
in the proper venue because the challenged conviction occurred in Alameda
County, California, which is located within this judicial district.
28 U.S.C. § 2241(d).

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in
behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254(a). The petition may
not be granted with respect to any claim that was adjudicated on the
merits in state court unless the state court's adjudication of the claim:
"(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d); see Williams (Terry) v. Taylor,
529 U.S. 362 (2000).

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in
federal habeas proceedings either the fact or length of their confinement
are required first to exhaust state judicial remedies, either on direct
appeal or through collateral proceedings, by presenting the highest state
court available with a fair opportunity to rule on the merits of each and
every claim they seek to raise in federal court. See
28 U.S.C. § 2254(b), (c). The parties agree that state court remedies were
exhausted for the claims in the present petition.

DISCUSSION

A. In-Court Identification By Witness Wright

Douglas Wright testified for the prosecution about what he saw and
heard when he drove by the liquor store at 12th and Market at about 4:00
p.m. Wright was a retired policeman who worked as an inspector for the
district attorney's office. Wright heard what sounded like two gunshots
and saw, among other things, a man getting into a red Corvette and
departing hurriedly. He saw the man directly and as a reflection in the
mirror of his car when he drove by the scene. After the man drove away,
Wright pulled his car up next to the red Corvette at a street light where
Wright observed the man again. Wright described the man as Black, in his
mid-20s, about 5'11" and 170-180 pounds. When the prosecutor attempted to have Cooper stand up in court so
Wright could try to identify him, defense counsel objected. A conference
was held outside the presence of the jury to discuss the identification
problem. No line-up had been done before the trial for this witness and
the prosecutor acknowledged that Wright had not seen the person well
enough to be able to make a specific, personal identification. RT 750.
Defense counsel thought the identification was too vague: "We're talking
about a five-eleven Black man, in the city of Oakland, weighing
approximately 170-180 pounds." RT 752. When the jury was not
present, Cooper stood next to counsel table and Wright was asked, "Is
there anything inconsistent about Mr. Aaron Cooper, the person who has
just stood up, and the person that you saw get into the red Corvette that
you already testified about?" Wright answered, "He matches, basically,
the height and the weight and age." RT 751. The court overruled the
defense objections and allowed the identification. RT 753. When the jury
returned, Wright repeated his identification of Cooper:

Q. Now, after the jury left this morning, did you
have an opportunity to observe the defendant in
this case, Aaron Cooper?

A. Yes.

Q. And would you describe if there's anything
inconsistent about his height and weight and
appearance from the person that you saw get
into the red Corvette?

A. There's none.

RT 756.

On cross-examination, defense counsel elicited some helpful testimony
from Wright. Wright admitted that he did not recall how the man was
dressed, admitted that he did not know whether the man wore his hair in
dreadlocks as Cooper did, admitted that in his years as a police officer
he had stopped many people who were Cooper's size, admitted that he did
not see the man holding anything although Wright had looked at the man's
hands, admitted that he had fractions of a second to observe the man, and
admitted that after he heard the gunshots he tried to determine where the
gun was but did not see any signs of a gun and did not see a gun in
Cooper's hand.

The California Court of Appeal rejected Cooper's claim that Wrigh's
in-court identification of Cooper was irrelevant and prejudicial. "We see
relevance . . . in the fact that Wright could say that the man resembled Cooper. Though his
testimony did not have the probative value of a personal identification,
it still had some `tendency in reason' to prove Cooper's presence at the
kidnapping scene." Resp. Exh. B, p. 33.

"A conviction which rests on a mistaken identification is a gross
miscarriage of justice." Stovall v. Denno, 388 U.S. 293, 297
(1967). Procedures by which the defendant is identified as the
perpetrator therefore must be examined to assess whether they are unduly
suggestive. "It is the likelihood of misidentification which violates a
defendant's right to due process." Neil v. Biggers,
409 U.S. 188, 198 (1972). Due process protects against the admission of
evidence deriving from suggestive identification procedures. See id.
at 196; of Manson v. Brathwaite, 432 U.S. 98, 106 n.9 (1977)
(standards are not different for pretrial and in-trial identifications).
Unnecessarily suggestive identification procedures alone do not require
exclusion of in-court identification testimony, however; reliability is
the linchpin in determining the admissibility of identification
testimony. See id. at 114. In determining whether in-court
identification testimony is sufficiently reliable, courts consider five
factors: (1) the witness1 opportunity to view the defendant at the time
of the incident; (2) the witness' degree of attention; (3) the accuracy
of the witness' prior description; (4) the level of certainty
demonstrated by the witness at the time of the identification procedure;
and (5) the length of time between the incident and the identification.
See id. at 114; Neil, 409 U.S. at 199-200.

To obtain habeas relief, Cooper must show that the in-court
identification was unnecessarily suggestive and not
sufficiently reliable. An in-court identification of a defendant who
looks different from everyone else around him and is clearly the person
on trial may be suggestive. See United States v. Rogers,
126 F.3d 655 (5th Cir. 1997) ("it is obviously suggestive to ask a witness to
identify a perpetrator in the courtroom when it is clear who is the
defendant"). Asking Wright to identify a particular man at the defense
table was suggestive if Cooper looked different from those around him
 a fact that this court cannot determine from the appellate record
 although for the reasons mentioned later, Wright's
"identification" was so generalized that it was of little value. In any
event, suggestiveness alone is not enough. Cooper has not shown that the
identification testimony was unreliable. Consideration of the factors identified in Manson regarding the reliability of
the identification leads to the conclusion that the evidence was not
unreliable. First, Wright had just a fleeting opportunity to observe the
man as Wright drove by, but Wright also saw the man up close when he
pulled his car up next to the man's car at a stop light. Second, Wright
was likely more attentive than an average citizen because he was a
retired police officer alerted by gunshots. Cf. Manson, 432
U.S. at 108 (trained police officer who realized he would have to find
and arrest the person with whom he was dealing was paying attention to
the identity of the person). Wright's attention had been drawn to the
scene because he heard what sounded like two gunshots; he scanned the
scene to try to figure out what was going on. This was not a situation
where a person observed what appeared to be neutral facts but later
turned out to be relevant to a criminal act. When Wright heard the
gunshots in the urban locale, he doubtless was thinking it was a crime
scene. And this was not a situation where the witness was the distressed
and distracted victim of a crime. Third, Wright's prior description at
the scene of the abduction had been general but so was his trial
testimony. Fourth, the level of certainty demonstrated by Wright was
adequate at trial. As to both the third and fourth points, the facts cut
against Cooper because Wright's description was rather general, but so
was his trial testimony. He did not actually identify Cooper as the man
who drove the Corvette, but rather was only asked whether Cooper had
characteristics not inconsistent with those of that man. The testimony
was far less damaging to the defense than if Wright had said Cooper
actually was the man. Fifth, only about four months had lapsed between
the observation of the witness and the identification. Four months is not
a long time in light of the generality of the description and the
identification testimony given. It is far easier to believe that a
witness could keep in his mind for four months an image of the general
type of person he saw rather than the exact person he saw. Considering
the various factors together, this court finds that the in-court
identification was sufficiently reliable.

Wright did not say that Cooper was the man, but only that Cooper's
height, weight and appearance were consistent with those of the man he
had seen at the crime scene. Bearing in mind that the body of law about
identification testimony is aimed at avoiding mistaken identification,
one can say with confidence that there was no likelihood of mistaken identification by Wright The vice of the admission of Wright's
testimony was its weakness, rather than that it may have been mistaken:
one can reasonably guess that hundreds or thousands of men in the Bay
Area would have an appearance consistent with the description of a Black
male in his mid-20s, about 5'11" tall and about 170-180 pounds.*fn3

The identification was weak and quite limited in that the witness only
said Cooper's appearance was consistent with that of the man observed
earlier. The defense obtained testimony that established the witness'
limited opportunity to observe, the commonness of defendant's size, and
the absence of a gun in the man's hands. Cooper's right to due process
was not violated by the admission of Wright's testimony that Cooper's
appearance was not inconsistent with that of the man he saw driving the
red Corvette. Cooper is not entitled to the writ on this claim.

B. The Appellate Record

Cooper claims that his right to due process was denied because his
appellate record was incomplete. At trial, the court reporter had
problems with her stenography machine. Cooper's appellate counsel raised
questions about the accuracy of the appellate record and sought to settle
the appellate record. Cooper's counsel thought Douglas Wright's testimony
was not transcribed fully. Cooper's counsel thought that the transcript
had omitted a couple of questions and answers to the effect that Wright's
description of Cooper "fit the description of half the young Black male
population in Oakland" and that Wright could not identify the person he
saw in the Corvette. See Exh. C to Resp. Exh. I. A post-conviction
hearing was held by the trial court to settle the record, after which the
trial court denied Cooper's application to settle the record. Resp. Exh.
H.

&nbsp; If a state creates a system for appellate review as an integral part of
the system for finally adjudicating the guilt of a defendant, the procedures used must
comport with demands of due process and equal protection. See Evitts
v. Lucey, 469 U.S. 387, 393 (1985) (citation omitted). The failure
to provide a criminal defendant with a transcript of the trial court
proceedings which effectively denies him his right to a timely appeal may
deprive him of his constitutional right to due process of law. See
Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989) (state's failure
to provide full record of trial may violate defendant's due process
rights and form basis for federal habeas corpus relief). Two criteria are
relevant to the determination of whether an adequate record has been
supplied: (1) the value of the transcript to the defendant in connection
with the appeal or trial for which it is sought; and (2) the availability
of alternative devices that would fulfill the same ...

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